Not Expanding Constitutional Torts

In 1971, the Supreme Court created a constitutional tort remedy against federal agents who violate constitutional rights in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 389. Subsequent cases created qualified immunity for actions where the legality of the agent's actions were fairly debatable at the time.

How about federal prisons operated by private contractors? No need to expand Bivens, the Court said today in Minneci v. Pollard, No. 10-1104. Just sue the privately employed guards in a state tort action like you would any other employee of a private business who violates your rights.

For one thing, the potential existence of an adequate "alternative, existing process" differs dramatically in the two sets of cases. Prisoners ordinarily cannot bring state law tort actions against employees of the Federal Government.... But prisoners ordinarily can bring state-law tort actions against employees of a private firm.

The discussion makes clear that the Court is going to be very reluctant to expand Bivens into any new territory. Bivens won't be expanded if there is another remedy, and maybe not even then.

Justices Scalia and Thomas concur. They go further and say that "Bivens and its two follow-on cases" should be limited "to the precise circumstances that they involved." Justice Ginsburg dissents alone.